Human rights protection begins at home

Paul Keating once claimed that our Constitution was imposed on us by the British Foreign Office.

In fact, the Constitution was drafted in Australia, by Australians and approved by the Australian people. When we asked the British to give it legal effect, the Colonial Secretary, Joseph Chamberlain, overrode Colonial Office advice to do so without any change.

Above all, he wanted the Privy Council to be the final court of appeal for all the empire. A compromise was reached, but Chamberlain was strongly criticised by his British colleagues for requiring even this change.

Appeals to the Privy Council were gradually reduced, and finally abolished in 1986. Yet a parallel process for reviewing Australian laws and government practice, as well as the hearing of individuals' complaints, has surreptitiously sprung up without the consent of the Australian people.

This is the panoply of committees set up under various United Nations treaties. Unlike the situation in the United States, treaties can be signed and ratified without parliamentary approval, although a process for parliamentary scrutiny is now in place.

Nevertheless, it has been possible for a treaty to be entered into without even the knowledge of Parliament, the government party or most members of Cabinet!

The most glaring example was when Australians saw, on television, the signing of the hitherto secret Keating-Soeharto Defence Pact.

The result of all this is that Australia has entered into many more treaties than even the United States, the global superpower.

UN human rights treaties were originally attempts to agree on internationally accepted standards, those already in existence in the world's leading democracies. These, of course, include Australia, a founder member and one who has done more to fight tyranny than most.

More recently, some have gone further, and include, at times, the agendas of particular lobbies which are unable to have them accepted domestically through the democratic process. In other words, if the people will not accept your agenda, get it in through the back door.

As broad statements of principle, these treaties are normally acceptable as targets for those people who have the misfortune to live under less democratic and more authoritarian governments. If they are now to be treated by the committees as if they were surrogate bills of rights targeted principally at democratic States, then they suffer from exactly the same weaknesses as domestic bills of rights.

Bills of rights are unnecessary in countries such as Australia where rights are very well protected. Or they are no more than window-dressing in those countries where they are in practice denied, sometimes spectacularly so. Containing general statements, they lack precision for their application.

But the discretion thus given to the courts runs counter to the role of the judge. This is to apply the law, and not to legislate. To an activist judge they offer a splendid opportunity to legislate further than ever envisioned, as we have seen so clearly in the US. The inevitable result is the politicisation of the highest judiciary.

So, the process of appointment and confirmation is no longer a search for quality. It becomes a search for political conformity either with those appointing or with those confirming, more often than not an impossible contradiction.

This results in frequent unworthy compromises, and an inevitable decline in the public standing and credibility of the highest judiciary.

It is hard to think of a more serious blow to the very heart of our democratic institutions.

Our founders were well aware of the limitations of bills of rights in, for example, France, in achieving standards which had already prevailed in Australia.

So when UN committees treat human rights treaties as surrogate bills of rights in countries such as Australia, rather than targets for proper standards under less democratic regimes or the most appalling dictatorships, something is seriously wrong.

By removing ourselves from the jurisdiction of those eminent and excellent judges who typically sat on the Privy Council, we surely never intended to submit ourselves to this new system. After all, this is surveillance by "experts'', many of whose careers were nurtured and whose appointments were championed by governments whose human rights practices would outrage right-thinking Australians.

The great achievement in human rights during the last decades of the 20th century were not the work of these committees. Instead, this was the result of the perseverance and the moral authority of those Western leaders who would not succumb or compromise in the Cold War, especially Margaret Thatcher and Ronald Reagan. It was their leadership which led to the collapse of the vast Soviet empire.

Just as it was Australian leadership and particularly of the Prime Minister, John Howard which, in seizing the opportunity, ensured that the great stain on our national conscience, East Timor, was finally erased. It was these Western leaders and not the panoply of UN human rights committees who ensured the liberation of so many people and their just attainment of basic human rights.

The United Nations is an important organisation, but its heart and soul remains in the Western democracies, whose concept it was.